President Obama’s Expressed Support for Them
Could Provide the Basis for Bipartisan Agreement

New York, NY—February 18, 2015—The creation of specialized health courts is gaining new momentum on Capitol Hill. Earlier this month three prominent Members of Congress introduced an alternative to the Affordable Care Act, which includes the creation of health courts. While the future of that plan is unknown, the inclusion of health courts is significant, because health courts have previously been endorsed by President Obama. Health courts could thus emerge as a point of bipartisan agreement.

The three Members of Congress are Sen. Orrin Hatch (R-UT), Chairman of the Senate Finance Committee; Rep. Fred Upton (R-MI), Chairman of the House Energy and Commerce Committee; and Sen. Richard Burr (R-NC), a member of the Senate Finance Committee. They have proposed the Patient Choice, Affordability, Responsibility, and Empowerment (CARE) Act to replace the current health law. Included in the nine-page summary of its provisions is the following language: “States could also elect to establish a state Administrative Health Care Tribunal, or ‘health court,’ presided over by a judge with health care expertise who can commission experts and make the same binding rulings that a state court can make.”

Health courts have previously been the subject of bipartisan agreement. Both President Obama and his 2012 Republican challenger Mitt Romney endorsed them. Mitt Romney advocated the creation of health courts in an op-ed in USA Today. President Obama had previously endorsed the creation of health courts in a letter to Congressional leaders released by The White House on March 2, 2010.

The concept of health courts has been championed by Common Good—the nonpartisan government reform coalition—working in conjunction with experts at the Harvard School of Public Health. Under Common Good’s model, health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in areas of complexity where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers’ comp, vaccine liability and a wide range of other specialized areas.

The public sees the need for reliable health care justice—and for health courts in particular. A nationwide poll conducted in 2012 by Clarus Research Group revealed that 66 percent of voters support the idea of creating health courts to decide medical claims. The health court concept has also been endorsed by virtually every legitimate health care constituency, including medical societies, patient safety organizations and consumer groups like AARP.

In the past, the creation of health courts has been blocked in the U.S. Senate by aggressive opposition from a single special interest—the trial lawyers, who benefit handsomely from the current erratic system of medical justice and held great sway with the previous Senate leadership.

“The public would benefit enormously—saving tens of billions of dollars—from the reliable medical justice that health courts would provide,” said Philip K. Howard, Founder and Chair of Common Good. “With the new Senate leadership and President Obama’s endorsement of health courts, let’s hope that the public interest will now be put ahead of the trial lawyers.”

For more information or to talk with Common Good Chair Philip K. Howard, please contact Miranda Barbot at 212-576-2700 x264 or mbarbot@goodmanmedia.com.

Common Good (www.commongood.org) is a nonpartisan government reform coalition dedicated to restoring common sense to America. The Founder and Chair of Common Good is Philip K. Howard, a lawyer and author of The Rule of Nobody (to be published in paperback next month by W.W. Norton) and The Death of Common Sense. The Rule of Nobody sets forth a vision for fundamental government overhaul.

Philip Howard’s The Rule of Nobody has been named a finalist for the Hayek Book Prize. Awarded annually by the Manhattan Institute, the Prize celebrates authors who best represent the principles of F.A. Hayek (1899-1992), the renowned economist and philosopher who was awarded the Nobel Prize in Economic Sciences in 1974.

This is the latest of many recognitions that The Rule of Nobody has received. It was named by Inc. magazine as one of “The Seven Most Thought-Provoking Books of 2014” and by the Daily Beast as one of the “Best Big Ideas of 2014.” W.W. Norton will release the paperback edition of The Rule of Nobody on March 2nd.

Click here to read more about the Prize and here to read the Manhattan Institute’s press release on the 2015 finalists.

The Sacramento Bee ran a good piece last week on the efforts of five retired California public employees who are trying to slim down the state’s outmoded job classification system—to some 2,000 job titles, from the current 3,666. Here’s an excerpt from reporter Jon Ortiz’s story:

They asked questions like this: Does the state really need 27 pay levels for prison math teachers? How about forensic toxicologists I, II, III and IV? The Technology, Trade and Commerce Agency was abolished 11 years ago, so why are its job classes still on the books?

‘We were amazed by that one,’ Fong said.

Simplifying the system won’t cure the state’s ailments, but it would signal that government values efficiency and wants to make itself more available to outsiders currently mystified when they apply for a state job. It would also cut down on needless, costly testing for promotions between jobs with little real difference. And it would clear out the clutter of tailor-made job classifications that sometimes were devised by a department with a single person in mind.

Click here to read the entire article. Convoluted job classification systems are not exclusive to California—New York City alone has over 1,000 job titles, as Philip Howard writes about here.

Click on the images below to watch excerpts from The Future of the Individual, Common Good and Columbia University’s November 6 forum on the social and economic developments that are diminishing the role of the individual in the modern world.

Here’s Common Good Chair Philip Howard on how we have the wrong idea of “the rule of law”:

Here’s former Indianapolis mayor and New York City deputy mayor Stephen Goldsmith on how innovation within government is “illegal”:

Writing in the Daily Beast, Philip Howard details how modern law prevents human judgment and why it’s now time to rebuild the legal framework of American government. An excerpt:

American greatness is built on a culture in which people wake up in the morning energized by the fact that they own their own choices. They are free to do things their way. They have the right to do what they think is right. Letting humans use their common sense is not an invitation to anarchy. It is freedom, and accountable both legally and socially to the free choices of others around them.

Today, doing what’s right is often unlawful. This is not because of bad leaders, or polarized politics, but because of a governing structure that is fatally flawed. Sending reformers into this vast regulatory jungle with pairs of shears is a fool’s errand. There’s no way to prune this vast tangle. It has grown from a rotten root—striving to replace human judgment with detailed dictates.

Writing in Foreign Affairs, Bob Litan of the Brookings Institution makes the case for sunsets and review commissions to clear the regulatory jungle hindering American entrepreneurship. An excerpt:

More broadly, Congress should regularly reevaluate and update federal regulations, many of which pose unnecessary barriers to entry for new firms. Federal regulations are expensive, often costing small businesses thousands of dollars per employee, and such costs pose a distinct disadvantage for younger and smaller firms, which rarely have the resources to hire full-time attorneys or compliance officers. To facilitate the dismantling of unnecessary regulations, Congress should include sunset provisions on all major federal rules so that every ten to 15 years or so, Congress is forced to reevaluate its regulations, removing those that do not pass a cost-benefit test and improving those that do. Congress could also authorize a bipartisan panel of experts to identify outmoded regulations and submit them on a regular basis to lawmakers for an up-or-down vote.

You can read his full essay (“Start-Up Slowdown: How the United States Can Regain Its Entrepreneurial Edge”) here. Common Good and Philip Howard have previoulsy made similar proposals—click here to read Philip’s proposed “Bill of Responsibilities” from The Rule of Nobody.

Litan also made this case at Common Good’s recent forum, The Future of the Individual—click on the image below to watch an excerpt from his presentation.

Along with works by Thomas Piketty, Francis Fukuyama, and Atul Gawande, the Daily Beast includes Philip Howard’s The Rule of Nobody—and its call for individual responsibility over mindless bureaucracy—among the ten books with the “best big ideas of 2014.”

The Daily Beast's William O’Connor writes: “No legislation will solve the real disease plaguing Washington, says Howard, who argues that there are too few people looking to lead and too many people hiding behind bureaucracy.”

UPDATE: On the Volokh Conspiracy blog at the Washington Post, David Post writes about Philip’s Cato essay, calling it “very interesting and thought-provoking.” Read the entry here.

ORIGINAL 11/17/14 POST: Writing for the Cato Institute's online forum on reviving economic growth, Philip Howard argues that we must radically simplify law to unlock the potential of the individual:

Law needs to get rebuilt. There’s no avoiding it. Sensible choices today are illegal.Productive activities are sinking in legal quicksand. Even the president can’t break loose. It’s the law.

But the new approach to law is not (generally) captured in the idea of “deregulation.” Most Americans want environmental review, special ed, financial regulation, licensing of food vendors, and oversight of healthcare delivery. Lawsuits are an essential tool of the rule of law.

All of these desirable goals of law, which should enhance our freedom, are instead undermining our freedom. Indeed, it’s hard to find one government program that isn’t broken, and often counterproductive.The evidence is irrefutable: Read Peter Schuck’s book, Why Government Fails So Often. My favorite failure is civil service — designed to be “the merit system,” it instead makes it illegal to judge anyone based on merit.

The mutant root that has produced this impenetrable bureaucratic kudzu is the idea that law can supplant human judgment. We have tried to create a hands-free legal code, without any risk of human frailty. Most legal detail is aimed not at important legal goals or principles, but at dictating daily implementation. That’s why the Volcker rule is 950 pages. The Constitution, by contrast, is ten pages.

American law has become central planning. Actually, it’s worse, because the planners are dead.Detailed laws and regulations are still dictating behavior decades after they are written, when circumstances have long since changed.

The solution, broadly, is to restore human responsibility as the activating force of law and regulation. Law should be radically simplified into goals and governing principles, like the Constitution, and leave to accountable humans the responsibility to achieve those goals fairly and sensibly. Law becomes a fence around a corral, within which humans can try to achieve results in their own way. Any successful regulatory oversight works this way. The FAA, for example, certifies new planes as “airworthy” without detailed codes on how many rivets per square foot etc. Would you rather fly on a plane that was permitted to fly only because a court decided it complied with detailed regs? Australia replaced a thousand rules for nursing homes with 31 broad principles such as requiring “a homelike setting” and respecting “privacy and dignity.” The experts scoffed. Within a year the nursing homes were materially better.

Writing for Inc. magazine, Geoffrey James designates The Rule of Nobody among the "most thought-provoking books of 2014" (along with Walter Isaacson’s The Innovators and Thomas Piketty’s Capital). He states:

Why it’s important: Every entrepreneur is painfully aware that government regulation is burdensome and yet (if he or she has any brains) also realizes that there must be some sort of structure to prevent laissez-faire capitalism from running roughshod over the non-billionaires. This book explains that government regulation is not inherently counterproductive but is made that way by the constant creation of endless legalistic details. The solution is to create basic principles rather than detailed regulations and allow civil servants and citizens to apply common sense in order to implement those details.

Best quote: ‘Nothing will get fixed until we give back to officials the authority that goes along with the responsibility. This requires more than reform. It requires remaking our structure of government—towards radically simplified structures with room for humans in charge to accomplish public goals. That’s what other countries are doing—replacing thick rule books with a few dozen goals and principles, liberating citizens and regulators alike to use their judgment and better accomplish public goals without getting paralyzed with red tape.’

The following statement by Philip K. Howard and Edmund Phelps was presented in conjunction with Common Good's recent joint forum with Columbia University’s Center on Capitalism and Society, "The Future of the Individual." In the coming days we will post videos and summaries from the forum. This joint statement can be downloaded as a pdf here.

Nothing gets done sensibly, or fairly, unless a real person makes it happen. This is true for a teacher in a classroom, a CEO in a company, a nurse in a hospital, a worker on a shop floor, an inspector of a restaurant, or a high official in Washington.

Making these choices requires an open zone in which the responsible individual feels free to draw on experience and instinct to make a judgment. Sometimes the decision will be a good one, sometimes it won’t. This process of trial and error is how people learn. It is part of economic advancement and the rewards of work. Similarly, achieving innovation requires a real person to imagine the product or method, to judge whether it has a chance of success, and to create the thing.

Today, Western nations are organized to avoid individual choice. Rules and systems tell us how to do things “correctly.” Mindless compliance supplants personal responsibility to achieve a result. The idea is that systems, not humans, will lead us to the promised land.

The harm is not just ideological—that individuals are less free. The harm is practical—things don’t work. Schools are lousy, healthcare unaffordable, government paralyzed, and people feel powerless to do anything about it. Economic growth is slower and the labor force has shrunk—observations suggest that innovation is constricted and job satisfaction has narrowed.

America needs a new public philosophy. Humans must be reinstated as the activating force. Systems and regulations must be rebuilt as a corral with an open area for human responsibility, not as an instruction manual that dictates daily choices. Corporate attitudes that block innovators from building in communities and handicap outsiders from competing with insiders must be exposed as costly to human fulfillment. Law should be a framework for free choice, not a replacement.

Put humans in charge. A revolution will be required. But that is proof only of how far we’ve slipped. This is not just a plea for better public policy. This is a new belief structure. Let us take responsibility. Judge how we do, don’t tell us how to do it.